May a condominium unit-owner recover for damage to his automobile while parked in the condominium parking lot when he had not given specific custody of the automobile to either the condominium or its managing agent? The answer was a clear "no" in Young v. Total Community Management Corp., a proceeding tried on February 13, 2002.
In this case, the plaintiff, Gary Young, a resident of Wharfside Condominium, began an action against the defendants, Wharfside Condominium Complex and Total Community Management Corporation, for damages to his automobile while parked in the condominium's parking lot on September 24, 2001. The legal issues which the court was called upon to decide were (1) whether a bailment was created between Young, a resident-owner, and the defendants by the operation of the resident parking lot, (2) whether there was an obligation to Young to protect his vehicle from vandalism while parked in the common parking lot, and (3) whether the defendants were negligent.
Young had been a resident at the condominium complex that was owned, operated, and managed by the defendants since May 1999. The defendants provided an outdoor parking facility for its residents, such as Young. This parking facility was fenced off and manned by security guards. There were three eight-hour shifts, thereby providing 24-hour-a-day security service. The security guard duties included the regulation of traffic in and out of the parking facility and controlling ingress and egress in and out of the condominium complex. Motorists had to show identification to the security guards as they entered and left the facility. At the conclusion of each shift, an inspection of the parking facility was conducted by one of the security guards.
Young, a resident-owner at the subject condominium complex, did not pay a fee to park his vehicle in the condominium residents' parking lot, as this service was part of his resident privilege. He paid a monthly common charge of $333.
At the time in question, Young parked his 1994 Chevrolet Corvette in the parking facility at the condominium over a weekend. The vehicle was parked on a Friday. When Young returned to the facility to retrieve his vehicle on the following Monday, September 24, he discovered a four-foot linear scratch on the left rear quarter panel of the vehicle, which had not been on the vehicle when he had parked it. Beau Cacchitore, another resident of Wharfside Condominium, testified that, at some time in the past, his vehicle had been vandalized while parked in the condominium's parking facility. He stated that he had reported the vandalism to the management. The court found that this witness' testimony was not substantiated by any other witness or exhibit received in evidence. The court also found that Young expended the sum of $434 to have his vehicle repaired because of the damage caused to his vehicle while in the subject parking facility. Young sought a judgment against the defendants in the amount of $434 in this action.
As a general rule, the court said that cases involving auto theft, damage, and vandalism, as well as pilfering while parked in a commercial or residential facility, are governed by the principles of bailment and negligence. One of the earliest reported cases on this subject from the New York State Court of Appeals was Osborn v. Cline. In settling the common law rule in this state, the court there articulated several principles in determining whether a bailment was created in the commercial parking of a plaintiff's vehicle. Associate Justice Crane stated, "whether a person simply hires a place to put his car or whether he has turned its possession over to the care and custody of another depends on the place, the conditions, and the nature of the transaction. One of the essential elements of a bailment is that the property be taken into possession of the bailee. Whether a bailment was created is an issue of fact to be determined by the trier of facts as to whether the vehicle left the owner's possession during the time the vehicle was parked on the defendant's premises."
For a fee, any house or lot-owner may permit someone to put his car on the premises without becoming a bailee or assuming any responsibility for its safety. It all depends on the facts. In another case, an appellate court was presented with a case where the plaintiff had parked her automobile in a lot operated by the defendants at a major metropolitan/international airport and returned four days later. She discovered that her vehicle had disappeared and claimed that the parking facility operator was responsible for her loss. The civil court found the initial transaction to be a bailment and granted judgment for the car owner.
The decision was reversed on appeal, with the court noting "...that the plaintiff drove into the parking lot at the airport, receiving an automatic vending machine ticket stamped with the date and time of entry. On one side the ticket was labeled 'License to Park' and stated that the lot provided self-service parking; it warned the holder that the lot was not attended and that the car should be locked. On the other side the ticket contained the words in smaller print: 'This contract licenses the holder to park one automobile in this area at holder's risk.'
"Further, it provided that the defendant was not responsible for the theft of the automobile. Upon the plaintiff's receipt of the ticket, a gate opened, permitting the entry of the automobile into the lot. The plaintiff drove the automobile into a parking space, locked and took the keys with her. Under the practice of the defendant, on leaving the lot, the holder of the ticket would drive to the point of exit, present the ticket to a cashier and pay the amount due based on the time elapsed. If the driver did not have a ticket, the cashier would demand proof of ownership of the automobile. The defendant employed personnel to maintain the lot and check automobiles left overnight in order to make certain that the cashiers collected proper fees. The lot was patrolled by Port of New York Authority police in the same manner as the airport."
The court held that "at common law when a chattel was placed by the owner in the possession of another under an agreement by the latter to deliver it on demand, a convenient shorthand expression of a duty cast on the bailee was formed by establishing a presumption of negligence if the bailee did not come forward with a satisfactory explanation to rebut the presumption. A bailment is a special contract; it describes a result that in many instances does not flow from the conscious promises of the parties made in the bargaining process by rather what the law regards as a fair approximation of the parties expectation. The appellate court stated, '...in formulating a rule to determine the extent of the liability of the defendant, we must concern ourselves with the realities of the transaction in which the parties engaged.' We must consider the nature of the circumstances themselves leading to the determination as to whether the transaction should be considered a bailment or whether the transaction should be classified as a license to occupy space, in which event the defendant is not liable to the plaintiff."
The court considered the circumstances of the transaction:
(1) The nature of the service the defendant was providing to the plaintiff (i.e., with a space to park in a lot with other automobiles to which other operators were given access);
(2) That the service provided was impersonal (i.e., was not by valet);
(3) The plaintiff retained control over the vehicle after selecting a space to park, parking the vehicle, and maintaining the keys to the vehicle;
(4) The plaintiff was made aware or should have known that no special precautions would be taken to protect the plaintiff's vehicle while it was parked; and
(5) The mere nature of the operation of a parking lot at an airport must have or should have put the plaintiff on notice of the gigantic task the defendant undertook to operate such a parking facility.
The court went on to hold, "In the absence of any proof of neglect by the defendant, then, we do not think that the defendant should be held responsible for the loss of the automobile...Unless proof of negligence is present on the part of the operator of the lot, the risk of loss must be assumed by the owner of the automobile." This decision was affirmed by New York's highest court in 1974.
On the issue of negligence, the court considered a 1984 case, where the legal issue was: what was the standard of care owed by a landlord of an apartment house garage to the tenant who parked his car in an assigned space in the garage, but did not turn over his keys to the garage security guards? In that case, where a radio was stolen from the vehicle while it was parked in the lot, although the court there did not reject the bailment analogy, it applied the standard of reasonable care under the circumstances whereby foreseeability would be a measure of liability, thereby rejecting the bailment-license basis of liability. The court went on to hold that "plaintiff may recover if, and only if, he establishes negligence on the part of the garage owner." Here, the court concluded that the nature of the service provided by the defendants was:
(1) A parking space for Young's vehicle in a parking lot where there were other vehicles parked along with Young's vehicle, and there was no direct payment, but a part of the service rendered by the defendants for Young's monthly common charge payment; and other operators/residents had access to the parking lot;
(2) The services provided were impersonal, (i.e., there was no valet parking of vehicles);
(3) Young retained control over the vehicle after selecting a space to park, parking his vehicle, locking it, and retaining the keys to the vehicle;
(4) No special precautions were to be taken to protect Young's vehicle while parked in the lot, (i.e., Young did not prove that the defendants either promised or did in fact provide any special safety feature to protect any of the vehicles parked in the lot);
(5) The mere nature of operating a common parking facility in a multiple dwelling complex such as a condominium where Young resided should have placed Young and other patrols of the lot on notice of the difficulty of securing each vehicle from vandalism, where there were a large number of individuals who had access to the facility. The defendants here provided a security guard for three shifts, each of eight hours. The defendants also provided control over ingress and egress to the parking facility by requiring the demonstration of identification of the entering motorist. The standard care owed by a defendant under such circumstances does not require that the defendants be an insurer in caring for the plaintiff's vehicle.
In this case, Young had neither demonstrated the creation of a bailment between himself and the defendants with respect to the parking of his vehicle in the parking facility nor had he demonstrated the assumption of an obligation on the part of the defendants which would establish negligence in the operation of the parking facility. Consequently, the court held that Young could not recover against the defendants for the vandalism. Young's claim for damages was dismissed. The defendants were awarded a judgment of dismissal.
Comment: The result in this case was not surprising. There was no bailment. The condominium-owner merely parked his car in the common parking area. Neither the condominium association nor its managing agent was given specific custody of the unit-owner's car. It was left unattended in the association's parking lot. This is not enough to make the condominium association or its managing agent an insurer of the automobile's condition. There was no delivery of custody which would impose a bailee's liability on the condominium or its managing agent.